Exam (elaborations)
PVL2601 - Combined Tut201 Family Law 2021
- Course
- Exam Elaboration (PVL2601)
- Institution
- University Of South Africa (Unisa)
PVL2601 - Combined Tut201 Family Law 2021
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DEPARTMENT OF PRIVATE LAWFAMILY LAW (PVL2601)
TO ALL STUDENTS OF FAMILY LAW
TUTORIAL LETTER :
MEMORANDUM FOR ASSIGNMENTS 01, 02 AND 03
FOR SEMESTERS 1 AND 2
, 2
Dear Student
This tutorial letter provides you with a complete memorandum for Assignments 01 and 02 of
the first and the second semester and Assignment 03. Please note that Assignments 01 and
02 for the first and the second semester are different. Assignment 03 is the same for both
semesters.
MEMORANDUM FOR ASSIGNMENT 01
FIRST SEMESTER
Jack and Gill plan to marry each other on 10 December 2010. They would like the marriage
to be celebrated on the beach at Camps Bay. Somebody advised them that marriages
concluded on the beach are invalid. They would like to know from you if this advice is
correct. Advise them with reference to the relevant legislation and case law.
Identifying the problem:
This problem deals with the legal requirements for the conclusion of a valid civil marriage, and
more specifically the requirement that the prescribed formalities must be complied with.(1)
Relevant law applicable to problem:
In terms of section 29(2) of the Marriage Act 25 of 1961,(1) the marriage must (“shall”) be
solemnised in a church or other building used for religious services or in a public office or
private dwelling house with open doors.(1) Section 29(2) is couched in imperative language,
and non-compliance with this subsection should therefore render the civil marriage void.(1)
However, in Ex parte Dow(1) it was held that non-compliance with section 29(2) does not
render a civil marriage void.(1) Here a husband applied for annulment of his civil marriage on
the ground that it had been solemnised in the garden of a private dwelling house and not “in”
the house as is required by section 29(2).(1 for facts of the case) Judge Broome examined the objects
sought to be achieved by the provision and the changes which had taken place in the
formalities required for the conclusion of a valid civil marriage through the centuries (such as
the abolition of the need for the publication of banns and special licenses to marry), and
concluded that the object of these provisions had been to avoid clandestine marriages. All the
provisions which had previously served to inform the public of an intended civil marriage have
been abolished.(1) He further pointed out that, in terms of section 24A of the Marriage Act, a
civil marriage a minor entered into without the necessary consent is not void, but may on
application be dissolved by a court. Similarly, section 26 provides that boys below 18 years of
age and girls below 15 years of age cannot conclude a valid civil marriage without the
permission of the Minister of Home Affairs, but if such consent is not obtained, the Minister
may ratify the marriage. Judge Broome felt that in these situations there were far more
compelling reasons to treat the marriage as void ab initio, but the Act did not do so.(1 for referring to
, 3 PVL2601/201
any one of these situations)
He concluded that a civil marriage is such an important relationship, and
the consequences of a decree of nullity are so far-reaching, that the legislator could not have
intended the marriage to be void if “the two-letter word ‘in’” was not complied with.(1) The
husband’s application was accordingly dismissed.
(There are 9 possible marks under this heading, but only 7 marks can be allocated.)
Application to the facts of the problem:
Despite the provisions of section 29(2) of the Marriage Act, Jack and Gill will probably be able
to celebrate their marriage on the beach at Camps Bay in the light of the decision in Ex parte
Dow which currently only applies in KwaZulu-Natal.(1) The advice given to them is therefore
incorrect.
NB: A mark was also awarded for language, the use of tenses/syntax and formulation.
(See Heaton J South African Family Law [the prescribed textbook] pp 32-33 and the study
guide pp 48-49.)
TOTAL FOR ASSIGNMENT 01: [10]
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